Chief Cyprian Chukwu & Anor V. Independent National Electoral Commission & Ors (2014)
LAWGLOBAL HUB Lead Judgment Report
MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE, J.S.C.
The above two consolidated appeals arose from the ruling of the Court of Appeal, Abuja Division in appeal No: CA/A/299M/2011 in which the Court of Appeal, now court below, granted the application filed by the 4th respondent in SC.111/2012 for leave to appeal as an interested party against the judgment of the Federal High Court in Suit No: FHC/ABJ/CS/656/2010.
I think the facts and circumstances leading to the consolidated appeals are quite brief and interesting devoid of any complication. It is like this. By an originating summons in suit No: FHC/ABJ/CS/656/2010, appellant in SC.111/2012 but 2nd respondent in SC.336/2012, as plaintiff, sued the appellant in SC.336/2012; Independent National Electoral Commission (INEC) and Peoples Democratic Party (PDP) in the proceedings seeking interpretation of the judgment of this court in Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) page 227, for the following reliefs.
“(a) A declaration that in the eyes of the law and as decided by the Supreme Court in the case of Amaechi v. INEC (2008) 5 NWLR (Pt.1080) page 227 @ pages 318 – 319 the 2nd defendant is the person who has been in office as the duly elected governor of Rivers State of Nigeria since 29th May, 2010 pursuant to the gubernatorial election conducted by the 1st defendant on 14th April, 2007 in which the 2nd defendant being the lawfully sponsored candidate of 3rd defendant was returned as the winner of the gubernatorial election.
(b) A declaration that the 2nd defendant whose term of office expires on the 28th May, 2011 cannot remain in office after the 28th May, 2011, save upon having contested and won a fresh election of a second term of four years commencing with effect from 29th May, 2011 in accordance with section 180 (2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
(c) A declaration that the 3rd defendant is bound to schedule and conduct primary election to choose its gubernatorial candidate for Rivers State in accordance with section 87(1) and (2) of the Electoral Act 2010 and the Extant INEC Guideline, at the same time with this conduct of primary elections to choose candidates of the 3rd defendant who will contest on it’s platform in all other States of the Federation where the tenure of office of current incumbent governor will expire by law on 28th day of May, 2011.
(d) An Order compelling the 3rd defendant to schedule and conduct primary election to choose its gubernatorial candidate for Rivers State at the same time with the conduct of primary elections to choose candidates of the 3rd defendant who will contest on its platform in all other States of the Federation where the terms of office of current incumbent governors will expire by law on 28th May, 2011
(e) An Order compelling the 1st Defendant to conduct gubernatorial election in Rivers State on the same date and at the same time when governorship elections are scheduled to be held for the purpose of electing successors to the office of governors in all other States of the Federation whose current term will expire on 28th May, 2011.”
Judgment in this matter was delivered on 7th October 2010 by the Abuja Division of the Federal High Court per Abdul Kafarati, J herein after called trial court. He held that “In view of the analysis of Amaechi v. INEC and Ladoja v. INEC cases, I resolve question 1, 2, 3 and 6 in the affirmative and questions 4 and 5 in the negative.”
The trial court consequently granted the reliefs sought by the plaintiff therein, which culminated in the conduct of a Fresh Governorship election in Rivers State in April, 2011.
The 1st respondent in Appeal No.SC.336/2012 Celestine Omehia – then brought an application before the Abuja Division of the Court of Appeal seeking, inter alia, leave to appeal against the ruling of the trial Federal High Court in FHC/ABJ/CS/656/2010 as an interested party. In its ruling delivered on 20th December, 2010 the Court of Appeal, therein after called the lower Court, granted leave to the 1st respondent to appeal as an interested party. As the record shows, the appellant vehemently opposed same.
It is against the above ruling of the lower Court that the appellants in SC.111/2012 and SC.336/2012 now appealed to the Supreme Court pursuant to leave granted by this court on 15th June 2012.
That being the case the appeals both in SC.111/2012 and SC. 336/2012 arose from the same ruling of the court below and the grounds appear similar except with minor difference. This was what actually led to this court consolidating the two appeals.
Let me start with the issue formulated by the appellant in appeal No.SC.111/2012 thus:-
(a) Whether the 4th respondent’s application for leave to appeal as an interested party was competent in law before the lower Court, and thus grantable (Distilled from ground 4);
(b) Whether the 4th respondent by his application before the lower Court disclosed sufficient facts and interest to entitle him to the grant of his application for leave to appeal as an interested party by the lower Court (Distilled grounds 2 and 3).
(c) Whether the Lower Court was right in granting leave to the 4th respondent to appeal despite his conduct as disclosed in the materials before the court (Distilled from ground 1).
It is to be noted however, that the 4th respondent, Celestine Omehia, in SC.111/2012, just adopted the above issues as formulated by the appellant without more.
The 1st respondent also adopted the issues as formulated by the appellant and said no more. The 2nd respondent did not even file any response. This is perhaps, because he is appellant in appeal number SC.336/2010 in which he is also challenging the judgment of the court below.
For the 3rd respondent, INEC, the following issues are formulated:-
(i) Whether the 3rd respondent’s application for leave to appeal as interested party is not competent
(ii) Whether considering the facts and materials before it, the lower Court was not right to have granted leave to the 3rd respondent to appeal as an interested party.
(iii) Was there anything in the conduct of the 3rd respondent stopping him from seeking and obtaining the discretionary favour of the lower Court to appeal as an interested party
The 4th respondent in SC.111/2012 merely adopted the issues for the determination as distilled by the appellant.
Now the issues formulated by the appellant in SC.336/2012 are:-
“(1) Whether the 1st respondent’s application for leave to appeal as an interested party as (such) is competent
(2) Whether having regard to the facts and materials before the lower Court and the inherent lack of locus in the applicant (now 1st respondent) the lower Court was right in granting leave to the applicant (1st respondent) to appeal as an interested party against the judgment of the trial court And
(3) Whether the lower Court was right in exercising the discretion in favour of the applicant (1st respondent herein) by granting him leave to appeal as an interested party, considering the conduct of the applicant and the peculiar circumstance of the application.”
On the part of the 1st respondent in SC.336/2012 three issues were formulated for determination of the appeal. This is different from what he did as 5th respondent in SC.111/2012 where he stated that he was adopting the issues formulated in that appeal. He is within his right to do so. Coming back to appeal number SC.336/2012. 1st respondent formulated the following issues for determination:-
“(1) Whether the prayers of the 1st respondent in the lower Court embody “the trinity of prayer”
(2) Whether having regard to the facts and material before it, the lower court was right to grant the applicant (the 1st respondent herein) leave to appeal as an interested party
(3) Whether in all the circumstance any “conduct” of the 1st respondent debarred the court below from granting him leave to appeal as an interested party
Just as it did in SC.111/2012 the 3rd respondent in SC.336/2012 who is 1st respondent in SC.111/2012 simply adopted the issues raised by the appellant. 3rd respondent left the issues formulated by the two appellants to the court and indicated it would abide by the decisions of the court in those appeals, relying on the decisions of this court in Attorney-General Federation v. Abubakar (2007) 10 NWLR (Pt.1041) page 1; Uzodima v. Izunaso (No.2)(2011) 17 NWLR (Pt.1275) page 30 at 63 among others. The 2nd respondent did not file any brief of argument in SC.336/2012 although he has a separate appeal in SC.111/2012, just like the 2nd respondent in SC.111/2012 did not file any respondent’s brief of argument again apparently because he has another appeal on similar grounds.
The 4th respondent in SC.336/2012 distilled the following issues for determination of the appeal thus:-
“(i) Whether the 4th respondent’s application for leave to appeal as an interested party is not competent
(ii) Whether considering the facts and material before it the lower Court was not right to have granted leave to the 4th respondent to appeal as an interested party
(iii) Was there anything in the conduct of the 4th respondent stopping him from seeking and obtaining the discretionary favour of the lower Court to appeal as an interested party”
In my view, I think the issue spelt out by the appellant’s appeal number SC.336/2012 capture the real issues having regard to the grounds of appeal. I therefore adopt the issues formulated by the appellant in appeal number SC.336/2012 and will treat the appeal along this line without losing focus of what argument of each party is.
ISSUE 1
This issue here is whether the 1st respondent’s application for leave to appeal as an interested party is competent.
Arguing this issue, Rickey Tarfa, SAN for the appellant in SC.111/2012 submitted that the first prayer sought by the 4th respondent in SC.111/2012, that is, Mr. Celestine Omehia through his counsel is misconceived in that, no law prescribes any period within which an interested party may bring his application for leave to appeal as a person having an interest in a mater. He relied on the cases of: Re:- Madaki (1996) 7 NWLR (Pt.459) page 153 at 164; and Ojora v. Agip (Nig.) Plc (2005) 4 NWLR (Pt.916) page 515.
Learned Silk went further to contend that relief number 1 sought by the 4th respondent was unnecessary, incompetent and so not grantable as the 4th respondent only had prayer for leave to appeal and prayer 3 for extension of time to file the Notice of Appeal for consideration.
Learned Senior Counsel further drew the attention of this court to the fact that the judgment of the trial court having been delivered about two hundred days before the motion for leave to appeal was brought, the 4th respondent’s prayer in the court below ought to have included the trinity prayers for extension of time to seek leave to appeal and extension of time to appeal.
Arguing the appeal, learned counsel for appellant Lateef O. Fagbemi, SAN in appeal number SC.336/2012 contended that the 1st respondent’s application for leave to appeal as an interested party was incompetent and by extension the court below lacks the jurisdiction to entertain or grant the application. He referred to section 243(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides for appeal by persons having interest.
According to the learned Silk, although section 243(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) gives right to seek leave to appeal to an interested party, section 243(b) of the same Constitution makes the right exercisable only in accordance with the Act of the National Assembly and rules of the court for the time being in force. The relevant Act of the National Assembly in this particular case is the Court of Appeal Act.
It is the submission of the learned senior counsel that a party whose interest has been affected by a decision must seek leave of the Court to bring an appeal against such a decision, in accordance with the provisions of the Court of Appeal Act and Rules; relying on RE: Eke (1993) 4 NWLR (Pt.286) 176 at 190. He submitted further that a party, whether appealing as of right or as an interested party, must always file his appeal within the stipulated time prescribed by the Court of Appeal Act, that is section 24(2) of the Court of Appeal Act, 2004. He also submitted that even as an interested party a party must seek the usual trinity prayers in the event of failure to appeal within time, citing Owena Bank Nig. Plc v. NSE Ltd (1997) 8 NWLR (Pt.515) 1 at 13 and Re: Madaki supra as authorities in this regard.
It is the contention of the appellant herein that the judgment of the Federal High Court was delivered on 7th October, 2010 whereas the application to seek leave to appeal was not filed until 27th May, 2011 (a period of about 200 days apart). Therefore, as at the time the application for leave to appeal as an interested party was made on 27th May, 2011 – the statutory time limit of 90 days allowed to appeal had lapsed. Hence, the applicant ought to have sought the “trinity prayers in addition to a prayer for leave to appeal but did not. Learned Silk, did an analysis of the prayers sought on the motion papers to further contend that the applicant failed to seek:
(i) Extension of time within which to appeal
(ii) Leave to appeal; and
(iii) Extension of time within which to seek leave to appeal
All of which are mandatory where the applicant is out of time. Hence, he submitted that the application is incompetent and the Court of Appeal acted without jurisdiction in granting same.
Prince Fagbemi, SAN quoted in extenso the decision of this court in Ezenwosu V. Ngonadi (1988) 3 NWLR (Pt.81) page 163 at 175 and Re: Madaki (supra) at 164/165. In conclusion on this point, learned senior counsel submitted that, once the time within which to appeal has expired, an interested party must not only seek leave to appeal but also include the trinity prayers for extension of time to apply for leave to appeal, leave to appeal and extension of time within which to appeal or file the Notice of Appeal.
Learned senior counsel’s conclusion on this issue is simply that the complaint on the competence of the application granted by the Court of Appeal is a complaint on jurisdiction of the court. He therefore, urged this court to resolve it in favour of the appellant by setting aside the decision of the court below and strike out the application seeking to appeal as an interested party on this issue alone.
The contention of the 3rd respondent in SC.111/2012 but 4th respondent in SC.336/2012 in its briefs of argument and oral argument in relation to the issue under consideration is that the issue submitted and argued by the appellant is an abuse of court process. Learned senior counsel was counsel for the 3rd respondent in SC.111/2012 and 4th respondent in SC.336/2012.
Learned Silk commenced his argument by referring this court to the provisions of section 243(b) of the Constitution and section 24(2) of the Court of Appeal Act. He contended that the latter is consistent with the former.
Learned Silk conceded that the application of the 4th respondent in appeal number SC.111/2012 but application in the court below was brought clearly outside the time limited by section 24(2) of the Court of Appeal. Learned Silk argued however, that unless the grounds of appeal are grounds of mixed law and facts (If it is an interlocutory appeal which he agreed is not) there would be no need to seek leave to appeal under section 241(1) and (b) of the Constitution of the Federal Republic of Nigeria.
Mr. Oke referred to the portion of his brief dealing with the application of the 4th respondent in SC.111/2012 as applicant in the court below and submitted that the grounds of appeal in the court below are all grounds of law. Learned counsel went further to state that once this court holds that “all or any of the grounds of appeal is a ground of law alone, then this appeal must fall within the provisions of section 241(b) of the 1999 Constitution. It is thus, an appeal which can be brought as of right and thus requiring no leave.”
Mr. U. N. Udechukwu, SAN was the learned counsel for the 4th respondent in SC.111/2012 both 1st respondent in SC.336/2012. In this regard, the arguments and submissions in both respondent’s appeal are basically the same and also similar in nature to the submission of counsel to the 3rd respondent in SC.111/2012. Udechukwu, SAN submitted that, contrary to the contention of the appellants in the two appeals, the application for leave to appeal as an interested party was competent and proper as it contains the requisite trinity prayers – enunciated in Owena Bank Nig. Plc., supra. He submitted further that the first 3 prayers of the 1st respondent in the said application were in line with the dictates of Uwais, CJN as he then was, and Mohammad, JSC in the aforementioned cases. He referred this court to page 5 of the printed records, where the said application and relevant prayers can be found. He submitted emphatically that the application contains the trinity prayers; hence the submissions of the appellant to the contrary, in the face of the cold facts is misconceived. He concluded that the addition of the descriptive words “as an interested party” to each of the prayers enhances the prayer rather than derogates from it. He relied on the following cases:- C.P.C. v. Nyako (2012) 6 NWLR (Pt.1296) 199-271 and Re: Ugadu (1988) 5 NWLR (Pt.93) 189 at 195 in urging the court to resolve the issue against the appellant.
As indicated earlier, the stand of the Independent National Electoral Commission on this appeal as well as all the issues herein is to be neutral and abide by whatever this court decides. This is commendable.
Issue one for determination in this appeal, to all intents and purposes questions the competence of the 1st respondent’s application for leave to appeal as an interested party, and whether the Lower Court has the jurisdiction to entertain or grant the application.
From the submissions and counter argument exchanged by counsel on this issue, parties are ad idem that an application was filed seeking leave to appeal as an interested party pursuant to section 243(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999. However, the bone of contention was whether the said application, in view of the fact that the leave was not sought within the time allowed to appeal as provided in section 24(2) of the Court of Appeal Act, 2004 contained the “trinity prayer” as enunciated in the cases of Owena Bank Plc v. Nse Ltd. (supra); Re: Madaki (supra).
I think it is useful to start by saying that the following points are not in dispute in this appeal they are thus:-
(i) That the original parties to this case at the Federal High Court were Chief Cyprian Chukwu (as plaintiff) and Independent National Electoral Commission, Governor Rotimi Amaechi and Peoples Democratic Party as respondent.
(ii) Celestine Omeha was not a party to the suit at the Federal High Court.
(iii) Judgment of the Federal High Court was delivered on 7th day of October, 2010.
(iv) Celestine Omehia brought an application for leave to appeal as an interested party on 27/5/2011.
(v) The Court of Appeal granted the application hence these appeals SC.111.2012 and SC.336/2012.
It is also not in dispute that the application of the applicant in the Court of Appeal sought the following reliefs:-
“An order granting enlargement of time within which to seek leave to appeal as an interested party against the judgment of the Federal High Court, Abuja Division, delivered by the Hon. Justice A. Abdul Kafarati on the 7th October, 2010 between Chief Cyprain Chukwu as plaintiff and Independent National Electoral Commission, Governor Rotimi Amaechi and Peoples Democratic Party (PDP) as defendants.
(2) An order granting leave to the applicant to appeal as an interested party against the said judgment of the Federal High Court, Abuja Division, delivered by the Hon. Justice A. Abdul Kafarati on the 7th October, 2010 in suit No.FHC/ABJ/CS/656/2010 between Chief Cyprian Chukwu as plaintiff and Independent National Electoral Commission, Governor Rotimi Amaechi and Peoples Democratic Party (PDP) as defendants
(3) An order extending the time limited by section 24(2) of the Court of Appeal Act Cap 3 Laws of the Federation of Nigeria for filing the Notice of Appeal against the said judgment; and
(4) An order for the accelerated hearing of this motion on Notice.
That being the case, it is my view that the applicant in the court below (Celestine Omehia) ought to first ask for leave to appeal only as an interested party under Section 243(a) of the Constitution. However, since it is not in dispute that he was seeking leave to appeal as an interested party and the time within which he should have appealed had expired, Section 243(b) of the Constitution comes into play.
By section 243(b) of the Constitution, leave is only granted and the right of the applicant is only exercisable in accordance with the Act of the National Assembly and the rules of court. In this regard, applicant needs to consider the provisions of the Section 24(2) of the Court of Appeal Act which prescribes the time for appealing. In this connection, the decision of this court in Ezenwosu v. Ngonadi cited by Fagbemi, SAN applies. In that case, this court had the opportunity to pronounce on a similar provision to the present Section 243(a) of the 1999 Constitution as amended. And just as in this case, the matter dealt with an application for leave to appeal out of time by an interested party. In interpreting the provisions of section 222 of the then 1979 Constitution, this court held thus:-
“In the instant case, the applicant ought to have brought an application asking for:-
(a) Leave to be made a party in the case;
(b) Leave to appeal against the decision of the High Court.”
Now by Section 25(2)(a) of the Court of Appeal Act, No. 43 of 1976 an appellant or any person desirous of appealing shall give notice of his appeal within 3 months of the date of final decision, and by several decisions of this court, a person applying for leave to appeal must do so within the statutory period of 3 months. If he is out of time he would need to apply for extension of time within which to apply for leave to appeal, otherwise, the leave sought will be refused. In the instant case, the applicant/respondent is hopelessly out of time in applying for leave to appeal. He is seven years late and what he ought to have done was first to apply for:-
(i) Leave to appeal under Section 222 of the 1979 Constitution as a person having an interest in the case, and under the rules of courts.
(ii) Extension of time within which to apply for leave to appeal;
(iii) Leave to appeal, he may, of course, add other prayers, as for instance.
(iv) Extension of time within which to file notice and grounds of appeal.
It is necessary to point out that the last three prayers are wholly dependent on the first prayer. The other prayers cannot succeed unless the applicant is first made a party in the case. The applicant/respondent has in fact not asked for this first prayer and the Lower Court was, in my view, wrong to have given the respondent leave to appeal.
As can be deduced from the above authorities, the first relief for a new party to seek is leave to appeal.
As submitted by Fagbemi, SAN, it is clear from the foregoing that the first prayer a person seeking leave to appeal as an interested party must seek is for Leave to be made a party in the case, pursuant to the relevant section of the Constitution. So it is not just the trinity prayers that the applicant should seek. His first prayer be for leave to be made a party in the case or it may be couched as prayer one in the above quotation i.e. for leave to appeal under Section 243(a) of the 1999 Constitution (as amended) as a person having an interest in the case.
The other three prayers in the above quotation will now follow, if the application is made outside the time prescribed for appealing under Section 24(2) of the Court of Appeal Act, 2004.
The leave prescribed by Section 243(a) of the 1999 Constitution (as amended) is not rendered unnecessary by the fact that the grounds of appeal are on questions of law alone. Again, the nature of the grounds of appeal is not part of the complaint of the appellant in this appeal. The gravemen of the appellant’s issue 1 is that, the Lower Court acted without jurisdiction in granting the application of the 1st respondent to appeal as a person interested when the prayers he sought did not include, One seeking leave to be made a party to this case pursuant to section 243(a) of the 1999 Constitution.
This, court again in Re: Madaki (1996) 7 NWLR (Pt.459) 152 at 164D, H and 165, emphasized the need for a person seeking to appeal as an interested party to first obtain leave under Section 222 of the 1979 Constitution (now Section 243(a), “to become a party to the case”. This court restated the point that after such a person has obtained leave to be made a party to the case, he should file his notice of appeal within the time prescribed by Section 25 of the Court of Appeal Act, 1976. “If the prescribed time expired before such application was made, then it becomes necessary to apply:
(i) For enlargement of time to seek leave to appeal.
(ii) Leave to appeal; and
(iii) Extension of time within which to appeal.
This statement of the court is clear enough. The first relief to be sought by a person seeking to appeal as an interested party is to be made a party to the case. The three other prayers above will then follow if the application is made outside the three months prescribed by Section 24(2) of the Court of Appeal Act, 2004 for filing Notice of Appeal. The case of Adeleke v. Oyo State House of Assembly (2006) 10 NWLR (Pt.987) 50 at 69; does not purport to overrule this court and cannot do so on the interpretation handed down in Re: Madaki and in Ezenwosu v. Ngonadi (supra). I think the 3rd respondent in SC.111/2012 both 4th respondent in SC.336/2012 has simply misread and mis-understood the decision in Adeleke v. Oyo State House of Assembly (supra) and in Re: Madaki (supra) Ezenwosu v. Ngonadi (supra).
This court went further to hold in Odofin v. Agu (1992) 3 NWLR 350 at page 373 A – C as follows:-
“The further submission that because appellant failed to raise the issue until now he cannot raise it now, in my view, he has lost sight of the nature of the issue. It raises, as I have said, a serious issue of jurisdiction of the court to have made the order at all as well as the competence of the proceedings. Jurisdiction is a threshold issue in that a court must have jurisdiction before it can enter into the cause or matter at all, or before it can make a binding order on it. Where the statutory period to appeal has expired, the appellate court loses jurisdiction to hear an appeal on the matter. It requires a proper application under Order 3 Rule 4 of the Rules as well as a prayer and a valid order for an extension of time to restore that jurisdiction. In the absence of these, a condition precedent to exercise of jurisdiction would be lacking.”
In the foregoing premises, it is obvious that the respondent clearly misunderstood the thrust of the appellant’s appeals in both SC.111/2012 and SC.336/2012 on the 1st issue.
In view of the foregoing, I hold that issue 1 above is resolved in favour of the appellants. As a result, I hold that the application of Omehia to the court below was incompetent.
The resolution of issue 1 is enough to dispose of this appeal. However, in view of the important issue raised in issue two (2), I believe I should treat and resolve the issue:-
ISSUE 2
Under this issue, the learned senior counsel for the appellant in SC.336/2012 contended that the learned justices of the court below were wrong in granting leave to the 1st respondent to appeal as an interested party against the judgment of the trial Federal High Court, in the absence of requisite locus or sufficient interest, and especially where the applicant has failed to demonstrate any interest, or any grievance from the record before the court. Learned senior counsel submits that for an applicant to be entitled to be granted leave to appeal, as an interested party in a matter as prescribed under section 243(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), such an applicant must, above all show not only that he is a person having an interest in the matter, but also that the order/judgment of the court he is seeking leave to appeal against pre-judicially affects his interest. Counsel further, submits that to succeed in such an application, the applicant needs to show that he is a person who is aggrieved, or a person who has suffered legal grievances and against whom decision has been pronounced which wrongfully deprived him of something or wrongfully affected his title to something. He relied on:- Omotohso v. Abdullahi (2008) 2 NWLR (Pt.1072) 526; Sun Insurance Office Ltd. v. Ojemuyiwa (1963) 1 All NLR 1. Appellant then proceeded to recall from the record the following salient facts:-
(i) Independent National Electoral Commission (INEC), 3rd Respondent therein in appeal number SC.336/2012 against whom the trial court’s judgment was given and against whom positive orders were made by the trial court were apparently satisfied or content with the said judgment therefore, did not appeal against it.
(ii) No order(s) was made against the applicant (1st respondent in SC.336/2012 by the trial court, to justify the grant of leave to him to appeal as an interested party against same.
(iii) Applicant 1st respondent was not involved in the matter at the hearing before the trial court.
(iv) No shred of evidence pertaining to the applicant/1st respondent in appeal number SC.336/2012 was led at the proceeding; and
(v) Even the applicant’s proposed notice of appeal failed to reflect any grievance suffered by the applicant by the pronouncement of the trial court’s decision.
Learned senior counsel further submitted that the findings of the lower Court in the determination of the application for leave to appeal as an interested party was perverse and unfounded hence ought to be set aside.
Fagbemi, SAN drew our attention to the reliefs of the plaintiff at the Federal High Court, 2nd respondent in SC.336/2012 and submitted that the reliefs granted in his favour were essentially against the Independent National Electoral Commission, Peoples Democratic Party and the applicant, who was at the material time, the Governor of Rivers State and the subject matter of the suit was to determine his tenure and nothing more.
It was the further contention of Prince Fagbemi, SAN that the interest sought to be an interested party who desires to appeal must be shown from the record, but did not from the affidavit in support of the application for leave. This is so because the appeal would be determined on the record and not on the extraneous matters.
That being the case, in the absence of any legal grievance and sufficient interest, the application is unmeritorious and ought to be dismissed relying on the following authorities.
(a) Omotosho v. Abdullahi (2008) 2 NWLR (Pt.1072) 526 AT 545.
(b) Mobil Producing (Nig.) Unlimited v. Monokpo (supra)
Learned counsel concluded that having analysed in detail the claims granted by the trial Federal High Court and considering the totality of the affidavit evidence, no interest worthy of the court’s protection is demonstrated to warrant the grant of the application.
By the provisions of Section 243(a) of the Constitution of the Federal Republic of Nigeria (as amended), there are two categories of persons who can appeal. The 1st category belongs to parties to the proceedings who may appeal as of right.
The second category can only do so with leave of the court and not as of right. The right to appeal in this instance is only exercisable with leave, at the instance of the person who can show that he has an interest in the matter. Such a person has the herculean duty to satisfy the court that he has a legal grievance in the matter and that the decision pronounced has wrongfully and prejudicially refused him something which he had a right to demand. See Omotosho (supra).
For the 3rd respondent in SC.111/2012 but 4th respondent in SC.336/2012, the argument is one in each of the two briefs of argument filed. The position taken by Olusola Oke, follows that of Uchechukwu, SAN on the point that the second shows that the appellants herein did not challenge the findings of fact by the Court of Appeal on the issue that the appellant filed uncontroverted and unchallenged affidavit evidence to show that he has sufficient interest. Oke then submitted that an appellate court will not interfere with the exercise of discretion by the court below and urged us to interfere.
Oke, further stated that the outcome of the appeal may affect the applicant especially where the court holds that the tenure of the appellant, Rotimi Amachi, in SC.336/2012 did not expire on 28th May, 2011. This according to the learned counsel may necessitate the conduct of another election.
My lords, I must state from the onset that my focus in determining this issue should be on the concept of locus standi to appeal a decision of the court rather than the locus to institute a suit or ventilate a cause of action.
According to the 1st respondent the two planks on which he relied to bring his application for leave to appeal as an interested party against the judgment of the trial Federal High Court are contained in the uncontroverted deposition in the affidavit in support of the application to the effect that:
(a) He was a party to the judgment of the Supreme Court subjected to interpretation at the Federal High Court and should have been made a party to same; and
(b) That he is and was a person interested in the office of Governor of Rivers State of Nigeria.
However, a calm look at pages 49 – 51 as well as pages 105 – 108 of the record in SC.336/2012 would reveal abundantly that the said depositions were effectively controverted by the respondents to the application who filed counter-affidavit in opposition, including:-
“(i) 1st respondent’s counter affidavit to motion on notice dated and filed on the 27th day of May, 2011 deposed to by Dauda Lamiri; and particularly
(ii) Paragraphs 5, 11, 12, 13 14 and 18 of the 2nd respondent’s counter affidavit against applicant’s motion dated and filed on 27th May, 2011 deposed to by Ashaolu Gbenga that:
(5) I have also seen and read the judgment of the lower Court delivered on 7/10/2010, per Abdul Kafarati and fully understand its content and purport.
The said judgment was attached to applicant’s motion as Exhibit CO.”
“(11) By reading through the judgment, I know that, it does not in any way affect the interest of the applicant who was not a party in the lower Court.
(12) The judge merely referred to the name of the applicant as the userper of the 3rd respondent’s mandate as declared by the Supreme Court in the case of Amaechi v. INEC (2008) 5 NWLR (Pt.227);
(13) I have also perused the Originating Summons that gave rise to the judgment of the Lower Court and I know that same does not contain any complaint against the interest of the applicant;
(14) I know by virtue of my legal training that an interested party is one who ought to have been joined at the Lower Court; and
(18) Apart from the processes referred to above, I have also thoroughly read through the proposed Notice of Appeal attached to the motion and discovered that none of the complaints therein personally affects the interest of the applicant.”
Considering the above my lords, it is therefore, not true as contended by the first respondent in SC.336/2012 herein that the depositions made by the applicant/1st respondent herein were uncontroverted or not decided. This situation therefore, places the burden of demonstrating “sufficient interest” on the applicant/1st respondent in SC.336/2012.
My lords, I agree as submitted by the 1st respondent’s counsel that the law on locus standi is not static and that the circumstances of each case are to be considered. Hence, what constitutes a legal right, sufficient or special interest adversely affected will, of course, depend on the facts of each case. See: Nyako (supra). Therefore each case should be considered on its merit and peculiar facts.
It is my firm view, flowing from the community reading of Section 243(a) of the Constitution of the Federal Republic of Nigeria (1999) (as amended) and the plethora of the case law authorities on this point that only a person whose interest has been directly and not obliquely, affected by a decision that can validly seek leave to appeal as an interested party. This would not cover a person who has a general interest in the said decision to appeal against same. See Bala v. Dikko (2013) 4 NWLR (Pt.1343) page 52 at 63 – 64. In the appeal at hand, we take the interest or right being relied upon by the 1st respondent as one which he shares with other aspirants from other political parties. In that wise, the 1st respondent needs to show more facts which made him more affected by the outcome of the case.
The Court of Appeal in Omotosho v. Abdullahi (2008) 2 NWLR (Pt.1072) page 526 at 543, has also decided that in a matter of application for leave to appeal by an interested party, his interest must be clear from the record of proceedings and not from the affidavit he filed in support of his application as per Salami, JCA. The Supreme Court did not overrule same.
That being the case, the relevant question then is: did the applicant in the court below disclose sufficient interest in making the instant application for leave to appeal I think not. To my mind, it is not enough to allege, as applicant did in his affidavit in support of his application, that he was a party to the judgment of the Supreme Court subject of interpretation in the Federal High Court and ought to be granted leave to appeal. He needs to do more. After all, he did not acquire any legal right via the said judgment of the Supreme Court, which adjudged him “an imposter” or pretender with no right worthy of protection. See the Supreme Court’s case of Amaechi v. INEC (2008) 5 NWLR (Pt.1080) page 227 at 316 which he relied upon to anchor his interest. Page 318 of that report described the applicant in the court below as “a pretender” to the office of Governor of Rivers State. How then a pretender will qualify to be a person interested to seek leave to appeal remains to be seen or appreciated.
My lords, on this point alone, this issue 2 ought to be resolved in favour of the appellant against the respondents and it is hereby resolved accordingly.
Furthermore my lords, it is not also enough to ground locus merely by alleging that he is interested in the office of the Governor of Rivers State and has been prejudicially affected by the decision, just like several other aspirants, especially in the face of the denial in the numerous counter affidavit filed in opposition. I am therefore not convinced that the 1st respondent has demonstrated sufficient interest to warrant the grant of leave.
1st respondent having not shown how the judgment of the Federal High Court, he is seeking leave to appeal against prejudicially affected his interest and having not demonstrated that he is a person aggrieved, who has suffered legal grievance which deprived him of something or wrongfully affected his title to something is not entitled to the leave sought. The mere fact that the appellant in the court below stated that he was a person interested in becoming the Governor of Rivers State, to my mind, is not enough to confer interest on the applicant to seek leave to appeal. Apart from the fact that he has not shown any grievance, he is also not the only person who desires to be the Governor of Rivers State. See the decision of the court in Ayida & Ors. v. Town Planning Authority & Anr (2013) 10 NWLR (Pt.1362) 226 at 257 per Mohammed, JSC.
This my lords, leads me to the finding of the Lower Court to the effect that:-
“The record of appeal has shown the grievance suffered by the applicant and reference was made to him by the trial judge in its decision. The applicant by affidavit evidence before the court has shown sufficient interest in the pending appeal and we are satisfied.”
Having held earlier, the above findings are perverse and unmaintainable and ought to be set aside. See: Nkado and Ors. v. Obiano & Anor. (1997) 5 NWLR (Pt.503) 31. A finding is said to be perverse where it runs counter to the evidence on record or where it has been shown that the Lower Court took into account matters which they ought not to have taken into account or shut their eyes to the obvious. Therefore, this court shall not hesitate to set aside the perverse findings in the circumstances and I hereby do so. I rely on Awudo v. David (2005) 2 NWLR (Pt.909) 199; Okonkwo v. Ngige (2006) 8 NWLR (Pt.981) 119. Finally, I resolve this issue 2 in favour of the appellant.
ISSUE NUMBER 3
The issue here was treated by the two appellants in SC.111/2012 and SC.336/2012 in much the same argument and I propose to treat them together.
Under this issue, learned senior counsel for the appellants submitted that the grant or refusal of an application for leave to appeal as an interested party is a call on the equitable discretion relying of the court, on Ojora v. Odunsi (1964) 3 NSCC 34 at 48. It was further submitted that a person who goes to the temple of equity must do so with clean hands otherwise the very same mercy he seeks must be refused citing the case of: Okwulume v. Anoliefo (1996) 1 NWLR (Pt.425) 480 in support. It was contended that the application for leave ought not to be granted in view of certain uncontroverted facts, which are reprehensible and they include the under mentioned:
(i) 1st respondent that is Mr. Omehia had knowledge of the trial court’s judgment in suit No. FHC/ABJ/656/2010 prior to the election of April, 2011.
(i) 1st respondent lost to the appellant who was the 4th respondent’s Peoples Democratic Party-candidate in the election.
(ii) 1st respondent had unsuccessfully challenged the result of the election at the tribunal and on appeal; and
(iii) It was the desire of the 1st respondent to nullify the unfavourable election result that engendered the application for leave to appeal as an interested party.
Learned Senior Counsel, Fagbemi, SAN submitted that the aforementioned facts were deliberately misrepresented to the court below in the presentation of the application and ought to have compelled the refusal of the application.
Counsel also contended that law and equity would not allow anyone to engage in taking benefit of a course (as the 1st respondent did) but later resort to challenge that same course on the ground that he was not fortunate to have the benefit. He cited the case of Adesanya v. President, FRN (1984) 2 NCLR 3258 in support.
It was further submitted that the conduct of the applicant/1st respondent in participating the election and loosing is tantamount to waiver/compromise/abandonment of any perceived right by the applicant. See: Ariori v. Elemo (1983) 1 SCNLR 1; Olatunde v. O.A.U (1993) NWLR (Pt.178) at 178. Counsel finally urged this court to resolve issue 3 in favour of the appellant.
Like the appellants, the arguments or submissions of the opposing respondents are also along the same line. On this issue, learned senior counsel for the 1st respondent Mr. Oke, submitted that the issue of waiver does not arise on the facts and in the circumstances of this case. Learned counsel further submitted that waiver would not apply because all the grounds of appeal dwell on the issues of jurisdiction and constitutionality. Mr. Oke, SAN referred this court to Exhibit C04, the proposed notice of appeal at pages 37-43 of the record and submitted that no conduct of a litigant can result in waiver where the court lacks jurisdiction. The case of Adesola v. Abidloye (1999) 14 NWLR (Pt.637) 28 at 52 was cited in support. It was contended that illegality and unconstitutionality cannot be waived and that in fact and in all the circumstances of this case there is absolutely no issue of waiver, as waiver, can only arise in well defined circumstances.
The above, my lords, represented a summary of the argument and submission of all the counsel in respect of issue (3). There is no doubt that the 4th respondent in SC.111/2012 but 1st respondent in SC.336/2012 had taken benefit under the judgment he sought to appeal against to the court below.
Specifically, it has been shown that Mr. Omehia participated in the election which came up following the judgment of the trial court in this case. 4th respondent in SC.111/2012 had participated actively as a candidate in the election and lost. He also exhausted all the appeal remedies available to him as a petitioner. It was after exhausting all the above that he now resorted to pursuing an application for leave to appeal as an interested party. 4th respondent now finds it convenient to argue that his grounds of appeal are jurisdictional. The corollary effect of the above is that one cannot waive a jurisdictional or constitutional matter.
My lords, I think the 4th respondent has over simplified the issue involved. I think the issue of jurisdiction in the circumstances of this case is mis-conceived. What is being called to question is whether Mr. Omehia should be allowed or given leave to appeal against a judgment he derived benefit from and has in fact utilized the procedure for claiming remedy, albeit unsuccessfully. Like in the case of Adesanya v. President; Federal Republic of Nigeria (supra) it is highly un-conscionable for Mr. Omehia to now turn around to seek leave to appeal against a judgment he has taken or enjoyed so much benefit from. Fatayi Williams, CJN, of blessed Memory, opined in the Adesanya case (supra). And I fully agree with him, it is doubtful whether Mr. Omehia would have sought leave to appeal against the decision of the trial Federal High Court, if he had been successful at the poll which followed the decision of the trial court in this case. The issue involved is not jurisdictional as 4th respondent’s counsel would want to describe it, rather what is involved is the unconscionable behavior of 4th respondent which I highlighted above. In the circumstances, I hold that issue No.3 is hereby resolved in favour of the appellants against the respondents.
Lateef O. Fagbemi, SAN at the hearing of this appeal, the complained about the language and style of the brief of the 1st respondent SC.336/2012. He called the attention of this court to the use of the following words “contumacious fabrications” “fraud, “collusion”, “treason”, “holy cows”; by the 1st respondent’s counsel in his brief, to describe and accuse the appellant and his counsel. He further specifically referred this Honourable court to paragraphs 1.00 on page 1, 1.00 on page 5, 4.02 on page 9, 6.02 on page 37, 6.17 on page 43; 6.02 on page 49, and particularly paragraph 6.24 on page 51 of the 1st respondent’s brief in SC.336/2012, where he submitted that the 1st respondent, again, used debasing, scathing, and unfortunate choice of words against his person without any iota of proof.
Finally, relying on the case of Abubakar v. Yar’adua (2008) 19 NWLR (Pt.11220) 175 and Udo v. Eshiel (1994) 8 NWLR (Pt.363) 483; he urged this court to condemn in strong terms the conduct of the 1st respondent’s counsel and admonish him on the ethics and decorum of the profession, which is a noble and honourable one.
I have gone through the said 1st respondent’s brief and regretfully I have no doubt in my mind that the words used by the 1st respondent’s counsel are clearly bad and unbecoming of a legal practitioner. He need not use such derogatory and insultive language in a brief of argument. The rule of professional conduct requires lawyers not only to display a respectful attitude towards the bench but also to exhibit a high level of decorum, candour and fairness to the court and to other lawyers.
A court of law, especially the apex court, is a place for serious legal business of adjudication, and not a domain for the exchange of all sorts of insult and defamatory innuendos. The age long and sacred traditional decorum of the bar must be protected, maintained and held in high esteem in the discharge of counsel duties to their clients. Need I say more. I therefore deprecate strongly the choice of words, used by the 1st respondents counsel in his brief of argument as one unbecoming of a legal practitioner and ought not to be used in any brief, such words should be avoided.
In conclusion, I hold that as the appeals are pregnant with a lot of merits same are therefore allowed vis-a-vis appeal number SC.336/2012 as consolidated with SC.111/2012. I set aside the leave granted by the court below.
I allow the appeals and set aside the order of the court below which granted the 1st respondent -Celestine Omehia leave to appeal against the judgment of the Federal High Court.
No order as to costs.
SC.111/2012-SC.336/2012 (CONSOLIDATED)